B-171652, APR 15, 1971

B-171652: Apr 15, 1971

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BECAUSE THE BRAND NAME MODEL NUMBERS LISTED IN THE SOLICITATION HAD BEEN SUPERSEDED BY NEW MODEL NUMBERS AND THE WRONG DEMURRAGE CLAUSE WAS INCLUDED IN THAT IT WAS NOT THE ONE REQUIRED BY HEW PROCUREMENT REGULATIONS. INC.: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 6. THE IFB STATED: "MODEL NUMBERS CITED UNDER THE ABOVE ITEMS ARE THOSE OF UNION CARBIDE CORPORATION. THERE WAS INCLUDED IN THE IFB A DEMURRAGE CLAUSE WHICH PROVIDED THAT THE CYLINDERS WERE TO REMAIN THE PROPERTY OF THE CONTRACTOR AND. THE ONLY OTHER BID RECEIVED WAS FROM LANDSEL CRYOGENICS WHICH STATED "NO CHARGE" FOR DEMURRAGE. AMONG THE REASONS FOR SUCH ACTION WAS THE FACT THAT THE LINDE MODEL NUMBERS LISTED IN THE SOLICITATION HAD BEEN SUPERSEDED BY NEW MODEL NUMBERS.

B-171652, APR 15, 1971

BID PROTEST - CANCELLATION OF IFB DECISION DENYING PROTEST AGAINST CANCELLATION OF IFB ISSUED BY THE NATIONAL INSTITUTE OF HEALTH FOR A QUANTITY OF CONTRACTOR-OWNED CYLINDERS OF LIQUID NITROGEN ON A BRAND NAME OR EQUAL BASIS. BECAUSE THE BRAND NAME MODEL NUMBERS LISTED IN THE SOLICITATION HAD BEEN SUPERSEDED BY NEW MODEL NUMBERS AND THE WRONG DEMURRAGE CLAUSE WAS INCLUDED IN THAT IT WAS NOT THE ONE REQUIRED BY HEW PROCUREMENT REGULATIONS, CANCELLATION OF OF THE IFB APPEARS PROPER AND IN ACCORDANCE WITH FPR SEC. 1-2.404-1(1). THEREFORE, THE PROTEST MUST BE DENIED.

TO AIR PRODUCTS AND CHEMICALS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 6, 1971, PROTESTING THE REJECTION OF YOUR LOW BID AND THE PROPOSED READVERTISEMENT OF INVITATION FOR BIDS (IFB) NIH-71BV)93CC ISSUED BY THE NATIONAL INSTITUTES OF HEALTH (NIH), BETHESDA, MARYLAND.

THE IFB, ISSUED DECEMBER 1, 1970, INVOLVED THE PROCUREMENT OF 2,218 CONTRACTOR-OWNED CYLINDERS OF LIQUID NITROGEN IN MODEL LS-160 OR EQUAL CYLINDERS (ITEM 1) AND 180 CONTRACTOR-OWNED CYLINDERS OF LIQUID NITROGEN IN 2,440-CUBIC-FOOT MODEL LC-3 OR EQUAL CYLINDERS (ITEM 2). THE IFB STATED:

"MODEL NUMBERS CITED UNDER THE ABOVE ITEMS ARE THOSE OF UNION CARBIDE CORPORATION, LINDE DIVISION AND CYLINDERS BID UPON SHALL BE THOSE OR THEIR EQUAL."

THERE WAS INCLUDED IN THE IFB A DEMURRAGE CLAUSE WHICH PROVIDED THAT THE CYLINDERS WERE TO REMAIN THE PROPERTY OF THE CONTRACTOR AND, IF RETAINED LONGER THAN 30 DAYS BY THE GOVERNMENT, THE CONTRACTOR COULD CHARGE AN AMOUNT PER CYLINDER, PER DAY, SPECIFIED BY THE CONTRACTOR IN HIS BID. YOUR LOW BID YOU SPECIFIED A $0.60 PER CYLINDER, PER DAY, DEMURRAGE CHARGE. THE ONLY OTHER BID RECEIVED WAS FROM LANDSEL CRYOGENICS WHICH STATED "NO CHARGE" FOR DEMURRAGE.

BY LETTER DATED MARCH 9, 1971, THE DIRECTOR OF GENERAL SERVICES, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW), ADVISED OUR OFFICE THAT IT HAD BEEN DECIDED THAT THE IFB SHOULD BE CANCELED FOR SEVERAL REASONS. AMONG THE REASONS FOR SUCH ACTION WAS THE FACT THAT THE LINDE MODEL NUMBERS LISTED IN THE SOLICITATION HAD BEEN SUPERSEDED BY NEW MODEL NUMBERS. IN ADDITION, IT IS STATED THAT THE WRONG DEMURRAGE CLAUSE WAS INCLUDED IN THE IFB IN THAT IT WAS NOT THE CLAUSE REQUIRED BY HEW PROCUREMENT REGULATIONS 3-7.5002.

SECTION 1-2.404-1 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) PROVIDES THAT AFTER BIDS HAVE BEEN OPENED, AWARD SHOULD BE MADE TO THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER UNLESS THERE IS A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION. ONE OF THE REASONS FOR CANCELLATION PROVIDED IN FPR SEC. 1-2.404-1(1) IS "INADEQUATE, AMBIGUOUS, OR OTHERWISE DEFICIENT SPECIFICATIONS *** IN THE INVITATION FOR BIDS."

IN THE CIRCUMSTANCES, THE REJECTION OF ALL BIDS AND READVERTISEMENT OF THE PROCUREMENT APPEARS TO BE PROPER. ACCORDINGLY, THE PROTEST IS DENIED.